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REFORMS  IN 
CRIMINAL  PROCEDURE 


Modern  American  Law  Lecture 


Blackstone  Institute,  Chicago 


KEFOEMS  IN 
CRIMINAL  PKOCEDURE 


BT 

» 
WILLIAM  L.  BURDICK,  Ph.D.,  LL.B. 

rP.OFESSOR  OF  LAW,   CXIVEESITY  OF  KANSAS 


One  of  a  Series  of  Lectures  Especially  Prepared 
for  the  Blackstone  Ifistitute 


BLACKSTONE    INSTITUTE 
CHICAGO 

Copyright,    1920,    by    Blackstone    Institute 


T 

)Szo 


WILLIAM  L.  BURDICK 


;;  WILLIAM  L.  BURDICK 


P-' 


Mr.  Burdiek  has  been  a  Professor  of  Law  at  the 
University  of  Kansas  Law  School  since  1898. 

He  was  born  at  East  Greenwich  in  the  state  of 
Rliode  Island,  March  22,  1860,  and  is  a  descendant 
of  Robert  Burdiek  who  came  from  England  to  New- 
port, Rhode  Island,  in  1651,  After  attending  the 
public  schools  of  Rhode  Island,  he  entered  Wesleyan 
University  from  which  he  was  graduated  in  1882 
with  the  degree  of  Bachelor  of  Arts.  After  obtain- 
ing his  master's  degree  at  the  same  institution,  Mr. 
Burdiek  entered  Grant  University,  from  which  he 
obtained  the  degree  of  Doctor  of  Philosophy.  Sub- 
sequently he  attended  Harvard  Graduate  School  and 
Yale  Law  School,  receiving  his  degree  of  Bachelor 
of  Laws  at  Yale. 

For  several  years  after  being  admitted  to  the  Con- 
necticut Bar  in  1886,  Mr.  Burdiek  practiced  his  pro- 
fession. In  1891  he  forsook  law  to  act  as  Principal 
of  Fargo  College,  resigning  that  position  the  follow- 
ing year  to  become  an  instructor  at  the  LTniversity 
of  Colorado.  In  1898  he  began  his  present  associa- 
tion Avith  the  University  of  Kansas. 

Professor  Burdiek  has  acquired  renown  as  a  pub- 
lic speaker  and  a  writer  of  legal  textbooks.  Among 
some  of  his  books  are :  The  Elements  of  Sales,  New 
Trials  and  Appeals,  Real  Property  and  numerous 
treatises  in  the  Cyclopedia  of  Law  and  Procedure. 
He  is  also  the  author  of  the  articles  on  Criminal  Pro- 
cedure and  Landlord  and  Tenant  in  Modern  Amer- 
ican Law.  He  is  a  member  of  the  Phi  Beta  Kappa 
and  Psi  Upsilon  fraternities,  and  the  American  Bar 
Association,  as  well  as  various  other  civic  and  frater- 
nal organizations. 

The  author's  long  experience  as  an  educator,  lec- 
turer and  writer  furnishes  ample  assurance  that  the 
following  pages  are  filled  with  interesting  and  prof- 
itable reading. 


REFORMS  IN  CRIMINAL 
PROCEDURE 

By 

William  L.  Buedick,  Ph.D.,  LL.B. 

In  the  desire  of  promoting,  if  possible,  a  more 
satisfactory  adjustment  of  the  administration  of  the 
criminal  law  to  the  present  needs  of  the  people,  this 
Lecture  upon  the  subject  of  reforms  in  our  criminal 
procedure  has  been  prepared.  It  is  offered  in  no 
spirit,  however,  of  radicalism,  or  of  hostile  criticism 
of  a  great  and  ennobling  profession,  but  with  the  con- 
viction that  one  who  aspires  to  the  name  of  ''lawyer" 
in  its  ancient  and  honorable  sense  should  above  all 
things  wish  to  be  just,  patriotic,  and  serviceable  to 
the  public  welfare. 

In  the  first  place,  let  it  be  understood  that  the  term 
''reform"  is  here  used  in  its  true  and  lofty  signifi- 
cation, namely,  to  bring  about  improvements,  to  bring 
from  bad  to  good,  to  remove  faults  and  abuses,  to 
introduce  better  methods.  Unfortunately  the  words 
"reform"  and  "reformer"  are  being  used,  at  the 
present  time,  in  so  many  and  diverse  ways  that  they 
more  frequently  suggest  thoughtless  hysteria  and 
fanatical  clamor  for  mere  change  than  sound  judg- 
ment and  beneficial  improvement.  To  substitute  one 
thing  for  another,  to  experiment  with  something  dif- 

5 


6  MODERN  AMERICAN  LAW  LECTURE 

ferent  is  not  necessarily  to  reform.  Sucli  attempts 
frequently  tend  to  deform.  Nor  is  fickleness  reforma- 
tion. True  reform  results  always  in  changing  a 
worse  condition  to  a  better. 

Many  savage  tirades  against  tlie  law  and  the  legal 
profession  of  late  years  have  come  from  various  irre- 
sponsible sources.  Such  "criticisms"  have  been  too 
often  based  upon  extravagant  theories  and  unfounded 
assertions  of  self-seeking  demagogues.  Many  ill-in- 
formed articles  upon  the  * 'law's  delays"  have  also 
been  published  in  not  a  few  newspapers  and  popular 
magazines.  While  these  attacks  have  undoubtedly 
made  considerable  impression  upon  the  popular  mind, 
yet  they  do  not,  in  themselves,  make  for  true  reform. 
They  are  essentially  destructive,  not  constructive. 

Is  There  Need  of  Reform? 

Understanding,  then,  at  the  outset,  that  the  real 
object  of  reform  is  to  correct  long-standing  abuses, 
it  is  first  necessary  to  learn  if  such  abuses  exist.  To 
begin  with,  it  should  be  determined  whether  it  is  true 
or  not  true  that  there  is  something  that  ought  to  be 
corrected.  Applying  this  test  to  criminal  procedure 
in  this  country — is  it  true  that  our  present  system  of 
procedure  does  not  reasonably  meet  the  practical 
needs  of  modern  society?  Is  our  procedure  such  as 
ought  not  to  be  approved  and  is  it  approved  by  the 
great  body  of  good  and  intelligent  men  and  women? 
Is  there,  as  a  matter  of  fact,  a  widespread  disrespect 
among  the  masses  for  the  present  enforcement  of  our 
criminal  law  ?  Is  our  procedure  ineffective  and  slow, 
and  do  the  guilty  often  go  unpunished?    Is  there, 


REFORMS  IN  CRIMINAL  PROCEDURE  7 

in  fact,  one  law  for  the  rich,  and  another  for  the  poor  ? 
In  our  criminal  procedure  are  abuses  prevalent,  tech- 
nicalities absurd,  costs  and  length  of  trials  excessive, 
justice  delayed  ?  Upon  the  truthful  answers  to  these 
questions  in  each  case  and  the  righteous  reform  of 
all  abuses,  if  such  exist,  the  dignity,  the  justice,  the 
efficiency,  and  the  stability  of  our  criminal  laws 
depend. 

Our  Criminal  Procedure  a  Disgrace.  Criminal 
procedure  in  this  country  must  plead  guilty  to  the 
above  arraignment.  There  is  no  defense.  The  tes- 
timony is  all  on  one  side.  The  best  and  ablest  men 
in  the  legal  profession,  the  deepest  students  of  our 
laws,  and  our  greatest  and  wisest  jurists  are  prac- 
tically unanimous  upon  this  point.  The  American 
Bar  Association  and  many  state  bar  associations  ac- 
knowledge the  existence  of  evils  in  our  criminal  pro- 
cedure and  are  already  planning  many  reforms 
therein.  A  former  President  of  the  United  States, 
who  is  also  an  able  lawyer  and  a  distinguished  judge, 
said  two  or  three  years  ago,  in  a  public  speech  in  Chi- 
cago, ''The  administration  of  criminal  law  in  this 
country  is  a  disgrace  to  civilization." 

Before  proceeding  to  the  consideration  of  some 
needed  reforms  in  our  criminal  procedure,  it  seems 
important  to  say  a  word,  by  way  of  preface,  in  ex- 
planation of  the  origin  of  many  of  our  present  day 
rules  governing  the  accusation  and  prosecution  of 
offenders.  It  may  serve  to  put  our  judges  and  law- 
yers in  a  different  light  when  it  is  shown  that  they 
are  not  responsible  for  the  rules  and  methods  so 
severely  criticized,  but  that  they  are  merely  the  heirs, 


8  MODERN  AMERICAN  LAW  LECTURE 

SO  to  speak,  of  a  procedure  once  justified  but  now,  in 
many  particulars,  obsolete.  The  American  law  of 
criminal  procedure  grew  up,  historically,  in  the  Eng- 
lish common  law  courts,  and  many  rules  there  had 
their  origin  in  justice  and  mercy.  The  former  penal 
laws  of  England  were  written  in  deeper  blood  than 
the  laws  of  Draco,  and  many  of  the  niceties  of  plead- 
ings in  indictments  were  created  by  the  courts  in  a 
spirit  of  humanity. 

Many  Technicalities  Survive  from  Obsolete  Eng- 
lish Rules.  In  fact,  the  mass  of  technicalities  of 
criminal  procedure,  coupled  with  the  rule  of  strict 
construction  of  penal  statutes,  is  a  monument  to  the 
sense  of  justice  of  the  early  English  common  law 
judges,  who  were  wont  to  rule  in  merciful  considera- 
tion of  the  life  of  the  accused — ''when  barbarous 
law,"  as  Professor  Maitland,  of  England,  says,  ''was 
tempered  by  luck."  This  justification,  however,  for 
many  of  the  old,  complicated  rules  of  procedure  has 
passed  away,  and,  today,  their  continued  application 
has,  through  vastly  changed  conditions,  become  an 
instrument  of  injustice  to  society  rather  than  of  par- 
donable mercy  to  the  accused.  Today,  the  criminal  is, 
by  these  rules,  often  unduly  protected,  while  the  sense 
of  justice  of  the  people  is  offended.  The  excuse  for 
the  old  rules  having  passed  away,  the  old  rules  them- 
selves should  vanish  with  it.  It  is  due  to  our  inertia 
and  too  great  conservatism  in  meeting  new  conditions 
that  they  have  not  been  changed  in  many  states  of 
this  country.  They  were  changed  years  ago  in  Eng- 
land and  hardly  a  vestige  of  them  now  remains  in 
that  country. 


REFORMS  IN  CRIMINAL  PROCEDURE  9 


II. 


WHERE   REFORM   IS   NEEDED. 

Let  us  now  consider  specifically  the  most  conspicu- 
ous faults  and  abuses  in  our  system  of  criminal  pro- 
cedure in  the  United  States,  and  determine,  if  pos- 
sible, by  what  means  it  may  be  improved.  It  should 
not  be  understood,  however,  that  the  criticisms  herein 
made  apply  equally  to  all  our  states,  since  some  juris- 
dictions have  already  rid  themselves  of  some  or  many 
of  these  evils.  But  some  reforms  still  need  to  be 
made  in  practically  all  of  our  states,  and  many  mat- 
ters require  improvement  in  not  a  few  of  them. 

The  Third  Degree. 

At  the  very  outset  it  is  insisted  that  reforms  are 
necessary  in  many  parts  of  our  country  in  the  treat- 
ment of  arrested  persons  from  whom  the  police  au- 
thorities desire  to  obtain  evidence  of  guilt.  I  refer 
to  that  American  iniquity  known  as  ''the  sweat  box," 
and  also  as  ''the  third  degree,"  the  latter  term  being 
borrowed  from  certain  secret  society  initiations  where 
it  is  popularly  supposed  a  candidate  is  put  to  a  su- 
preme or  crucial  test.  I  call  this  practice  of  police- 
extorted  confessions  an  "American  iniquity,"  because 
I  believe,  from  observation  in  this  and  in  other  coun- 
tries, that  it  is  an  instrument  of  greater  abuse  in 
certain  parts  of  the  United  States  than  in  any  other 
civilized  land. 

The  interrogation  of  accused  or  even  suspected  per- 
sons by  proper  authorities  in  order  to  obtain,  if  pos- 


10  MODERN  AMERICAN  LAW  LECTURE 

sible,  evidence  of  certain  crimes  may  be  justifiable 
in  certain  cases,  and  such  procedure  may  also  be 
logical  and  natural.  A  parent,  for  example,  will  nat- 
urally question  Ms  child  who  is  suspected  of  wrong- 
doing, as  will  likewise  a  master  his  servant.  Under 
the  procedure  in  criminal  cases  in  continental  Europe, 
the  "questioning"  of  arrested  persons  by  a  magis- 
trate is  familiar  practice  and  is  expected,  but  these 
cases  are  quite  different  from  the  practice  in  some 
parts  of  this  country,  where  brutal  violence  is  re- 
sorted to  by  police  departments  for  the  purpose  of 
extor.ting  involuntary  confessions.  Such  methods 
are  of  the  same  character  as  the  tortures  of  medieval 
inquisitions. 

A  Fetv  Illustrations.  To  specify  more  clearly  the 
nature  of  the  so-called  "third  degree,"  a  few  illus- 
trations are  appended,  all  actual  occurrences  in  this 
country. 

A  Chinaman  was  recently  arrested  for  a  heinous 
crime.  He  was  placed  in  a  cell;  continually  ques- 
tioned by  a  relay  of  detectives  and  other  officials; 
forcefully  kept  without  sleep  for  two  or  three  days, 
in  the  expectation  that  his  mental  torture  and  phys- 
ical exhaustion  would  become  so  acute  that  he  would 
be  glad  to  "confess"  in  order  to  obtain  relief.  A 
woman  was  arrested  for  murder;  at  midnight  the 
corpse  of  the  victim  was  brought  to  her  cell  that  the 
dramatic  horror  of  the  scene  might  compel  her  to 
"confess."  Another  prisoner  was  denied  food;  an- 
other brutally  beaten,  "slugged"  is  the  word,  until 
he  was  forced  to  speak. 

Other  atrocities  are  practiced,  such  as  highly  salt- 


REFORMS  IN  CRIMINAL  PROCEDURE  11 

ing  the  food  and  denying  water  to  the  victim ;  plac- 
ing prisoners  in  solitary  confinement;  or  in  bitterly 
cold  cells,  when  the  weather  aids;  or  in  frightfully 
superheated  rooms  at  other  times.  Red  pepper  has 
been  blown  into  their  cells,  and  other  indignities,  too 
numerous  to  mention,  perpetrated  in  order  that  a 
** confession"  may  be  extorted  from  a  helpless  wretch. 

Such  is  a  hint  of  "the  third  degree"  in  Christian 
America  in  the  twentieth  century.  While  such  prac- 
tices are  brutal  abuses  of  authority,  even  criminal, 
occasionally,  in  themselves,  nevertheless  the  crowning 
shame  is  that  they  are  done  in  the  name  of  the  law, 
and  directed,  in  most  cases,  against  humble  and 
friendless  individuals  who  regard  their  jailers  as  the 
representatives  of  the  law.  The  severest  condemna- 
tion of  such  practices  should  prevail  and  the  persons 
guilty  of  them  should  be  fittingly  punished. 

How  Reform  May  Be  Brought  About.  In  Eng- 
land, it  is  provided  by  statute  (11  &  12  Vict.)  that 
no  person  accused  of  crime  shall  be  questioned  unless 
first  informed  that  he  need  not  answer,  and  that  if  he 
does  his  admission  may  be  used  against  him.  Sun- 
ilar  statutes  could  be  passed  in  this  country  to  the 
effect  that  no  statements  or  alleged  confessions  of 
accused  persons  should  be  received  in  evidence  against 
them  unless  it  is  shown  at  the  trial  that  they  were 
fully  warned  of  their  constitutional  rights  to  refuse 
to  testify  against  themselves.  In  1912,  Kentucky 
passed  a  statute  prohibiting  the  extortion  of  informa- 
tion, by  threats  or  other  unlawful  means,  from  per- 
sons accused  of  crimes,  for  the  purpose  of  using  such 
information  against  them. 


12  MODERN  AMERICAN  LAW  LECTURE 

The  Grand  Jury. 

Turning  to  the  instruments  of  the  law  itself,  let  ug 
consider  the  grand  jury,  in  connection  with  which 
there  is  much  room  for  reform.  The  Federal  Con- 
stitution provides  that  "no  person  shall  be  held  to 
answer  for  a  capital  or  other  infamous  crime  unless 
on  a  presentment  or  indictment  of  a  grand  jury." 
Although  this  provision  applies  only  to  federal  courts, 
nevertheless  similar  constitutional  provisions  exist  in 
most  of  the  individual  states. 

The  grand  jury  has  an  ancient  and  honorable  his- 
tory. It  has  existed  in  England  for  eight  hundred 
years.  The  King's  judges,  as  early  as  the  twelfth 
century,  went  into  the  various  counties  to  hold  court, 
and  they  made  inquiries  of  good  and  true  men  of  the 
vicinity  concerning  crimes  committed  in  the  neigh- 
borhood. These  good  and  true  men,  as  protectors  of 
society  and  as  defenders  of  law,  thereupon  did  accuse, 
upon  their  oaths,  all  malefactors  and  criminals  known 
to  them.  At  the  time  of  its  origin  and  thereafter  dur- 
ing its  long-continued  effectiveness,  the  grand  jury 
was  a  sensible,  protective,  and  just  system.  Today, 
however,  it  is  a  piece  of  archaic  legal  machinery,  a 
millstone  upon  the  neck  of  justice. 

The  Loopholes  for  the  Criminal  in  the  System. 
The  grand  jury  must  consist  of  qualified  members, 
must  be  duly  drawn  and  summoned,  and  must  proceed 
in  accordance  with  law.  If,  for  example,  an  ineligible 
person  sits  upon  the  jury,  or  if  an  unauthorized  per- 
son asks  questions  in  the  grand  jury  room,  it  has 
been  held  that  the  proceedings  are  vitiated,  the  in- 


REFORMS  IN  CRIMINAL  PROCEDURE  13 

dictment  invalid.  Hence,  a  murderer  escapes  in  a 
southern  city  because  a  member  of  the  grand  jury, 
as  was  afterwards  learned,  could  not  read;  and  a 
bank  wrecker  in  a  northern  city  goes  free  because  an 
accountant,  not  employed  by  the  prosecuting  attorney, 
was  present  in  the  grand  jury  room  and  interrogated 
certain  witnesses.  These  instances  are,  however,  only 
illustrations  of  hundreds.  The  possibilities  of  irregu- 
larities in  grand  jury  proceedings  are  so  great,  the 
questions  that  can  be  raised  so  multiple,  that  delays 
of  months  or  of  over  a  year  in  the  trial  of  a  case  may 
result,  and  have  resulted,  from  this  source  alone. 

The  Grand  Jury  SJiould  Be  Abolished.  Where  the 
Constitution  makes  necessary  the  intervention  of  a 
grand  jury  in  a  criminal  prosecution,  the  system  can- 
not, of  course,  be  abrogated  except  by  constitutional 
amendment,  but  such  an  amendment  to  the  Federal 
Constitution  is  not,  for  the  present,  practical.  Some 
states,  however,  have  substantially  abolished  the 
grand  jury,  and  permit  informations  to  be  filed  di- 
rectly by  a  prosecuting  officer.  In  all  jurisdictions, 
statutes  could  obviate  many  of  the  unreasonable  rules 
that  by  common  law  are  held  applicable  to  grand  jury 
proceedings. 

Mr.  Justice  Riddell  of  the  Supreme  Court  of  On- 
tario, Canada,  said  in  an  address  before  the  Amer- 
ican Institute  of  Criminal  Law  and  Criminology,  at 
Montreal,  in  September,  1913,  that  he  utterly  failed 
to  see  the  advantage  of  a  grand  jury  in  any  criminal 
case.  He  also  said  that  the  grand  jury  in  Ontario  is 
now,  by  statute,  composed  of  but  thirteen  persons 
instead  of  the  common  law  number  of  twenty-three, 


14  MODERN  AMERICAN  LAW  LECTURE 

and  that  in  some  parts  of  Canada  grand  juries  have 
been  abolished  altogether. 

Indictments  and  Informations. 

It  is  in  the  law  relating  to  indictments  and  informa- 
tions, however,  that  one  of  the  chief  culture-mediums 
of  the  maladministration  of  criminal  law  is  found. 
The  indictment,  prepared  and  drawn  by  the  public 
prosecutor,  receives  the  formal  approval  of  the  grand 
jury,  the  jurors,  as  individuals,  being,  of  course,  ab- 
solutely ignorant  of  the  requisites  of  indictments. 
In  other  words,  whether  a  criminal  prosecution  is 
instituted  by  the  finding  of  a  grand  jury,  or,  as  in 
some  states,  by  direct  information  of  the  prosecuting 
attorney,  the  grand  jury  being  dispensed  with,  the 
validity  of  the  instrument  of  accusation,  as  the  law, 
generally  speaking,  now  stands,  depends  upon  the 
integrity,  or  the  learning,  or  the  good  fortune  of  the 
draftsman. 

A  hundred  years  ago,  Jeremy  Bentham,  attacking 
with  profound  insight  and  with  trenchant  pen  the 
like  evils  of  his  own  day,  said :  * '  The  power  of  grant- 
ing effectual  pardon  to  all  criminals — murderers  not 
excepted — belongs  incontestably  to  every  person  by 
whom  the  function  of  penning  the  instrument  of  accu- 
sation is  performed."  It  is  a  reproach  and  a  shame 
upon  the  administration  of  the  criminal  law  today 
that  the  same  charge  is  still  true.  A  corruptible 
prosecuting  attorney  has  it  in  his  power  to  draw  an 
indictment  which,  although  to  a  layman  apparently 
invulnerable,  will,  nevertheless,  be  set  aside  by  the 
courts.    Granting  that  most  prosecuting  officers  are 


REFORMS  IN  CRIMINAL  PROCEDURE  15 

honest,  even  granting  that  they  are  learned,  yet  the 
possibilities  of  pitfalls  are  so  numerous  that  only 
good  fortune  may  save  them  from  adverse  and  humil- 
iating decisions. 

Illustrations  of  Hoiv  They  Serve  as  Pitfalls  in 
the  Way  of  Conviction.  A  few  illustrations  from 
among  hundreds,  all  of  them  actual  American  deci- 
sions, and  nearly  all  of  them  good  law  even  now  in 
their  respective  jurisdictions,  must  suffice: 

(a)  On  the  ground  that  the  misspelling  of  the  indi- 
cated essential  word  rendered  the  indictment  mean- 
ingless, indictments  have  been  held  fatally  defective 
because  the  word  ''father"  was  written  "farther"; 
because  the  word  ''breast"  was  written  "brest";  be- 
cause the  word  "larceny"  was  written  "larcey"; 
because  the  word  "dwelling"  (in  an  indictment  for 
burglary)  was  written  "dwell."  The  doctrine  of 
idem  sonans  did  not  apply,  it  seems,  in  any  of  these 
instances,  and  it  may,  at  this  juncture,  be  pertinent 
to  inquire  of  the  reformed  (?)  spelling  enthusiasts 
whether  there  is  not  a  possibility  that  some  of  their 
recommendations  may,  indirectly,  at  some  time,  add 
to  the  present  increasing  immunity  of  crime. 

(b)  On  the  ground  that  no  word  can  be  omitted 
which  is  an  integral  part  of  the  offense,  indictments 
have  been  quashed  because  the  word  "to"  was  omitted 
from  the  phrase,  "intent  to  kill  and  murder,"  and 
because  "of"  was  omitted  in  the  expression  "from 
the  possession  of." 

(c)  On  the  ground  that  one  must  not  be  charged 
with  an  offense  in  language  that  is  disjunctive  or 
alternative,  a  criminal  escapes  because  the  indictment 


16  MODERN  AMERICAN  LAW  LECTURE 

charges  the  accused  with  the  illegal  sale  "of  spirit- 
uous or  intoxicating  liquor";  likewise,  because  bad 
for  repugnancy,  for  the  reason  that  the  accused  was 
named  as  *' Douglas  Jones,  alias  Dug  Jones,  whose 
true  Christian  name  is  to  the  grand  jurors  unknown/' 
These  illustrations  should  be  sufficient  to  establish 
the  "certainty"  in  which  the  bribe-taking  or  friendly 
prosecutor  may  prepare  his  pleadings  for  the  pro- 
tection of  the  accused,  and,  on  the  other  hand,  to 
show  the  perils  into  which  even  the  most  careful  and 
most  zealous  public  prosecutor  may  fall.  Here  are 
three  other  notable  decisions: 

(1)  A  is  indicted  for  defrauding  the  "First  Na- 
tional Bank  of  C."  The  indictment  was  held  fatally 
defective  because  it  did  not  state  whether  such  bank 
were  an  individual,  a  partnership,  or  a  corporation. 
An  ordinary  person  might  presume,  of  course,  that 
a  "National"  bank  was  a  corporation,  but  it  is  a 
sufficient  answer  to  such  "an  ordinary  person"  to 
say  that,  although  he  is  presumed  to  know  the  law, 
yet  he  evidently  does  not. 

(2)  The  Supreme  Court  of  a  certain  state  set  aside 
an  indictment  because  the  " Railroad  Corpora- 
tion" (its  legal  name)  is  designated  as  the  " 

Railroad  Company/' 

(3)  Two  men  were  convicted,  in  Chicago,  of  the 
forgery  of  a  note.  There  seems  to  have  been  no  ques- 
tion as  to  their  guilt.  The  Supreme  Court,  however, 
set  aside  the  judgment  and  discharged  the  defendants 
because  the  indictment  in  describing  the  note  read 
that  it  was  "in  substance  as  follows."  Now  it  is  the 
general   rule   that   forged   instruments,    unless   de- 


REFORMS  IN  CRIMINAL  PROCEDURE  17 

stroyed  or  otherwise  non-accessible,  must  be  set  out 
according  to  their  ' '  tenor, ' '  that  is,  set  out  in  an  exact 
copy.  The  court  held  in  this  case  that  the  words  "in 
substance"  did  not  purport  an  exact  copy,  and,  there- 
fore, the  indictment  was  fatally  bad.  Despite  the 
fact  that  the  instrument  was  literally  copied  word 
for  word  into  the  indictment,  and  despite  the  admis- 
sion of  the  court  that,  if  the  words  "in  substance" 
had  not  been  inserted,  the  words  "as  follows"  would 
have  been  satisfactory  as  showing  "tenor,"  the  crim- 
inals escaped,  and  the  comity  paid  the  expenses  of  a 
fruitless  prosecution. 

Technical  Verbiage  Should  Be  Eliminated.  There 
is  no  valid  reason  why  an  indictment  or  an  informa- 
tion cannot  be  made  short  and  simple,  and  at  the  same 
time  sufficiently  inform  the  accused  of  the  crime  with 
which  he  is  charged.  Reforms  in  this  particular  are 
very  urgent,  and  can  be  made  very  practical.  The 
verbiage,  repetitions,  and  prolixity  of  a  typical  in- 
dictment or  information,  as  framed  in  most  of  our 
states,  are  really  a  travesty,  although  they  are  neces- 
sary under  the  prevailing  present  practice.  From 
the  standpoint  of  common  sense,  however,  such  ver- 
bose, redundant  phrasing  is  worse  than  useless,  since 
its  only  result  is  to  produce  a  highly  technical  accusa- 
tion in  which  shrewd  and  learned  counsel  for  the 
defense  may  find  many  a  flaw. 

It  is  a  just  and  important  rule  that  the  accused 
should  be  informed  of  the  identical  offense  with  which 
he  is  charged.  Such  a  rule  is  fundamental,  and  is  a 
necessary  safeguard  to  life  and  liberty.  It  should  not 
be  considered  necessary  or  important,  hov\'ever,  that 


18  MODBEN  AMERICAN  LAW  LECTURE 

useless,  iminaterial,  and  senseless  details  of  the  al- 
leged crime  be  set  out.  Tliey  serve  no  purpose  in 
the  interests  of  justice  or  of  reason. 

Take,  for  instance,  an  ordinary  indictment  or  in- 
formation for  murder  by  means  of  shooting  with  a 
gun.  The  indictment  usually  alleges,  substantially, 
that  the  accused  at  a  certain  time  and  place  feloni- 
ously, deliberately,  premeditatedly,  and  of  his  malice 
aforethought  made  an  assault  upon  (the  deceased) 
by  means  of  a  certain  gun,  then  and  there  loaded  with 
gunpowder  and  leaden  bullets,  which  said  gun,  then 
and  there,  held  in  both  the  hands  of  the  said  accused, 
the  said  accused  did  then  and  there  feloniously,  delib- 
erately, premeditatedly,  and  of  his  malice  afore- 
thought, shoot  off  and  discharge  at  and  against  the 
body  of  (the  said  deceased),  and  that  by  such  means 
the  accused  inflicted  then  and  there  upon  the  body 
of  (the  said  deceased)  one  mortal  wound  (the  older 
indictments  specified  the  part  of  the  body  wounded, 
and  many  still  do  so;  they,  moreover,  used  to  de- 
scribe the  length  and  depth  of  the  wound),  whereby 
the  said  (deceased)  did  then  and  there  instantly  die, 
or  (if  the  death  were  not  immediate)  did  languish 
and  languishing  did  live  from  a  certain  day  to  a 
certain  day,  upon  which  latter  day  he  died,  etc.  Such 
an  indictment  is,  in  fact,  a  very  simple  illustration 
as  to  form,  many  indictments  for  murder  being  much 
more  cumbersome.  It  is  safe  to  say,  however,  that 
no  one,  unless  trained  in  the  approved  precedents  of 
forms  of  indictments,  would  ever  think,  originally, 
of  charging  the  crime  of  murder  in  such  a  way. 

A  Practical  Indictment.    Every  reasonable  requi- 


REFORMS  IN  CRIMINAL  PROCEDURE  19 

site  of  the  charge  could  be  stated  in  a  very  few  words, 
as,  for  example,  as  follows:  ''That  John  Doe  on  the 
10th  day  of  February,  at  the  City  of  Chicago,  did 
murder  Richard  Roe."  That  is  certainly  a  specific, 
definite  charge,  and  is  all  that  should  be  required  to 
be  alleged  in  the  formal  accusation.  The  accused 
knows  with  what  he  is  charged,  and  if  there  is  any 
reason  why  he  should  be  given  further  information, 
it  can  be  given  to  him  upon  his  request.  Such  an 
indictment  is  not  fanciful.  It  is  practical.  It  is,  in 
fact,  the  ordinary  form  of  an  indictment  for  murder 
in  Canada  today.  Moreover,  under  the  present  Eng- 
lish statute  (24  &  25  Vict.  c.  100)  it  is  not  necessary 
in  an  indictment  for  murder  or  manslaughter,  in  that 
country,  to  set  forth  the  manner  or  the  means  by 
which  the  death  was  caused.  In  a  charge  of  murder 
it  is  sufficient,  in  England,  to  allege  that  the  accused 
did  feloniously,  willfully,  and  of  his  malice  afore- 
thought kill  and  murder  the  deceased.  In  an  indict- 
ment for  manslaughter,  it  is  sufficient  to  allege  that 
the  accused  did  kill  and  slay  the  deceased.  (  See  Laws 
of  England,  Vol.  9,  p.  588.) 

A  Forgery  Indictment.  In  a  similar  way,  indict- 
ments or  informations  for  all  other  offenses  could,  by 
statute,  be  made  equally  simple.  One  further  illus- 
tration must,  how^ever,  suffice.  Let  us  briefly  con- 
sider an  indictment,  say,  for  forgery.  In  not  a  few 
■jurisdictions  an  indictment  for  this  offense  must  be 
carefully  and  skillfully  drawn  since,  otherwise,  there 
are  many  technical  possibilities  of  its  being  held  bad. 
Reference  to  the  case  in  Illinois  cited  above  will  show 
how,  under  the  common  law  in  connection  with  the 


20  MODERN  AMERICAN  LAW  LECTURE 

technical  doctrine  of  ''tenor"  and  "purport,"  an  in- 
dictment for  forgery  may  be  fatally  defective.  In 
fact,  it  is  said  in  a  Minnesota  case  (State  v.  Green- 
wood, 76  Minn.  211,  78  N.  W.  1042,  1117)  that  a 
common  law  indictment  for  forgery  is  ''very  lengthy, 
technical,  and  full  of  minute  allegations  of  matter." 
There  is  nothing  inherent,  however,  in  the  crime  of 
forgery  that  necessarily  makes  its  charge  a  compli- 
cated one.  Under  the  statute  of  Massachusetts,  for 
example  (Eev.  Laws,  ch.  218,  paragraph  67),  the 
form  of  an  indictment  for  forgery  is  very  simple. 

It  is  as  follows:    "That  A B with  intent  to 

injure  and  defraud  did  forge  a  certain  instrument 
purporting  to  be,  etc.  (give  the  name  of  the  instru- 
ment, description,  tenor,  or  substance  as  the  pleader 
chooses)."    In  England,  the  following  form  may  be 

used :    ' '  That  John  Jones  on  the day  of  March 

in  the year  of  our  Lord,  feloniously  did  forge 

a  certain  (e.  g.,  bill  of  exchange)  with  intent  thereby 
to  defraud,  against  the  form  of  the  statute  in  that 
case  made  and  provided."  (Laws  of  England,  Vol. 
9,  p.  763.) 

Tlie  Aim  Should  Be  a  Fair  Trial  on  the  Merits. 
These  illustrations  show  that  substantial,  practical 
reforms  can  be  made  in  the  drafting  of  accusations. 
Moreover,  it  should  be  provided  by  statute  that  in- 
formations may  be  amended  as  to  form,  either  before 
or  after  the  beginning  of  the  trial,  as  to  all  matters 
that  do  not  materially  affect  the  rights  of  the  accused. 
Likewise  no  indictment  or  information  should  be 
quashed  for  any  mere  clerical  omission  that  ordinary 
common  sense  readily  perceives  to  be  such  an  omis- 


REFORMS  IN  CRIMINAL  PROCEDURE  21 

sion,  or  for  any  defect,  imperfection,  surplusage,  or 
repugnancy,  which  is  purely  technical,  providing  suf- 
ficient matter  is  alleged  to  charge  distinctly  the  of- 
fense, and  to  indicate  the  person,  always  provided 
that  the  substantial  rights  of  the  accused  upon  the 
real  merits  of  the  case  are  not  prejudiced.  The  stat- 
utes of  some  of  our  American  states  already  provide 
for  such  reforms,  while  it  is  to  the  credit  of  the 
broader  spirit  of  jurisprudence  of  some  of  our  judges 
of  other  states  that,  even  without  the  enabling  au- 
thority of  statutes,  they  have  sustained  indictments 
that  upon  frivolous  objections  have  been  quashed  in 
other  jurisdictions. 

Delaying  the  Trial. 

After  the  indictment  and  during  the  time  preced- 
ing the  actual  trial,  there  are  many  dilatory  steps  in 
our  American  practice  that  advocates  may  take. 
There  are  possibilities  of  various  motions,  pleas  to 
the  jurisdiction,  pleas  in  abatement,  demurrer,  ab- 
sence of  important  witnesses,  other  engagements  of 
counsel,  in  fact,  possibilities  enough  to  postpone  and 
delay  the  trial  for  months  and  even  years.  The 
courts,  it  is  contended,  are  not,  as  a  rule,  to  blame, 
since  under  the  present  state  of  the  law  judges  are 
given  too  little  power  to  hasten  the  day  of  trial.  Our 
system,  as  President  Taft  said,  '4s  a  game  in  which 
the  advantage  is  with  the  criminal  and,  if  he  wins, 
he  seems  to  have  the  sympathy  of  a  sporting  public." 

On  the  other  hand,  while  delay  is  largely  brought 
about  by  the  fertility  of  expedient  on  the  part  of 
counsel  for  the  defense,  yet  is  counsel  not  justified  in 


22  MODERN  AMERICAN  LAW  LECTURE 

taking  advantage  of  every  technicality  possible  in  his 
client's  favor?  As  long  as  defending  counsel  acts 
within  the  law,  it  is  his  duty,  I  believe,  to  safeguard 
the  interests  of  the  accused  in  every  honorable  way. 
Many  of  the  ablest  and  most  respected  members  of 
the  bar  are  retained  in  criminal  cases,  men  whose 
integrity  is  unquestioned,  whose  honor  is  unassail- 
able. 

The  Fault  Is  with  the  System  Itself.  The  fault, 
therefore,  lies  not  with  the  courts,  or  with  the  de- 
fendant's lawyers,  but  with  the  system  itself.  The 
judges  who  preside  over  criminal  courts  should  be 
given  broader  powers  of  discretion  in  many  details  of 
practice  than  they  have,  in  most  jurisdictions,  at  the 
present  time.  They  are  too  often  bound  hand  and 
foot,  so  to  speak,  by  positive  rules,  the  infringement 
of  which  by  them  amounts  to  error.  Those  persons 
who  are,  today,  demanding  greater  restriction  of  our 
courts  are  only  aggravating,  in  their  blindness,  the 
prevailing  evils.  Great  care  should  be  exercised  in 
the  choice  of  judges,  and  only  men  of  ability  and  of 
known  integrity  should  be  selected.  To  them,  how- 
ever, should  be  given  authority  and  discretion  in 
order  to  dispatch  with  greater  promptness  the  busi- 
ness of  the  courts. 

Our  Trials  Too  Long. 

Not  only  are  the  possible  delays  prior  to  the  trial 
sources  of  great  abuse,  but  our  criminal  trials  them- 
selves are  too  long,  unnecessarily  and  wearisomely 
drawn  out,  thereby  causing  great  injustice  to  juries, 
witnesses,  and  all  other  persons  connected  with  the 


REFORMS  IN  CRIMINAL  PROCEDURE  23 

cases.  In  notorious  prosecutions  exciting  wide- 
spread public  comment,  a  week  or  two  weeks  is  often 
consumed  in  getting  a  jury.  In  San  Francisco,  in 
the  Calhoun  case,  ninety-one  days  were  actually 
spent  in  impaneling  the  jury.  In  a  Chicago  case, 
4,821  jur\Tiien  were  examined  in  order  to  get  twelve. 
In  England  and  in  Canada,  a  jury  in  a  criminal  case 
is  usually  obtained  in  a  few  minutes.  Mr.  Justice 
Riddell  of  Ontario  says  that  in  an  experience  of 
over  thirty  years  he  never  knew  it  to  take  more  than 
half  an  hour  to  get  a  jury  in  a  criminal  case.  That 
important  reforms  in  this  particular  are  imperative 
in  this  country  no  one  can  truly  deny. 

Examination  of  Witnesses.  The  time,  further- 
more, taken  up  in  examining  witnesses  is  one  of  the 
most  prolific  causes  of  just  criticism,  coupled,  as  it 
is,  with  the  possibility  of  reversible  error,  upon  re- 
view, in  the  court's  rejecting  or  admitting  evidence. 
Our  system  is  faulty  in  not  giving  the  judges  greater 
authority  to  keep  the  trial  moving,  to  exclude  all  but 
the  salient  points  of  the  case,  as  is  done  in  the  English 
courts.  Frivolous  objections  on  the  part  of  attor- 
neys as  to  matters  of  evidence  should  be  severely 
suppressed,  and  members  of  the  bar  should  under- 
stand that  the  tribunals  of  justice  represent  a  great 
department  of  the  state's  business,  and  that  the  court 
room  is  not  an  arena  for  dramatic  self -exploitation. 
Moreover,  the  present  latitude  now  given  counsel,  or 
assumed  by  counsel,  in  the  cross-examination  of  wit- 
nesses should  be  greatly  curtailed.  The  average  citi- 
zen regards  it  a  great  hardship  to  be  subjected  to 
the  innuendo,  insinuation,  and  even  brutal  attack 


24  MODERN  AMERICAN  LAW  LECTURE 

that,  "ander  the  cover  of  alleged  proper  cross-exam- 
ination, he  may  have  to  endure.  In  English  courts, 
objections  to  questions  are  rarely  heard,  because  im- 
proper questions  are  rarely  asked.  Counsel  there  are 
well-instructed  in  the  rules  of  evidence,  and  very  lit- 
tle time  is  lost  in  the  examination  of  witnesses. 

The  Defense  of  Insanity.  The  most  abused  doc- 
trine, however,  in  our  criminal  procedure,  and  one 
prolific  of  great  delay,  particularly  in  murder  cases, 
is  the  defense  of  insanity.  So  much  has  been  said  and 
written  upon  this  subject,  that  it  is  superfluous  to 
add  anything  here,  but  there  is  no  greater  reproach 
upon  the  American  system  of  criminal  procedure 
than  this.  As  in  almost  everything  else  criticizable 
in  our  laws,  the  fundamental  principle,  the  substan- 
tive law,  is  sound,  is  scientific,  but  its  application,  in 
so  far  as  it  relates  to  the  adjective  law,  is  disgrace- 
ful. Nothing  better  illustrates  and  better  justifies 
the  popular  clamor  of  ''One  law  for  the  rich,  an- 
other for  the  poor,"  than  the  miscarriages  of  justice 
that  are  due  to  the  defense  of  insanitj^ 

** Expert  testimony"  in  connection  with  this  de- 
fense has  become  a  by-word,  a  mockery,  a  mere  pros- 
titution of  great  talents  for  shameless  hire.  Numer- 
ous specialists  are  engaged,  large  sums  of  money  ex- 
pended, and  a  criminal  trial  prolonged  for  days  and 
even  weeks,  upon  an  issue  of  whether  or  not  the 
accused  was  insane  at  the  time  of  the  commission  of 
the  act,  when,  were  it  not  for  the  exigencies  of  the 
case,  no  one  would  have  suspected  the  mental  irre- 
sponsibility of  the  defendant.  Then,  in  addition, 
what  is  more  farcical,  more  absurd,  than  the  practice 


REFORMS  IN  CRIMINAL  PROCEDURE  25 

of  submitting  to  the  "expert"  a  long,  hypothetical 
question,  often  thousands  upon  thousands  of  words 
long,  containing  a  sjruopsis  of  all  the  evidence,  requir- 
ing, sometimes,  nearly  a  whole  day  to  read  it,  which 
is  to  be  answered  by  a  mere  "yes"  or  "no,"  when 
everybody  understands  just  how  it  will  be  answered 
by  the  particular  witness  ? 

To  such  an  extreme  has  society  been  wronged  and 
justice  been  mocked  by  this  plea,  that,  very  recently, 
a  special  committee  of  the  bar  association  of  a  great 
state  (a  commonwealth  that  has  peculiarly  suffered 
from  this  travesty  upon  justice)  has  gone  so  far  as 
to  recommend  the  abolishment  of  insanity  as  a  de- 
fense in  criminal  cases.  While  such  a  step  would  be 
wrong,  because  legally  unscientific,  nevertheless  much 
needs  to  be  done  to  correct  the  present  procedure. 

Statutes  passed  for  the  purpose  of  regulating  the 
use  of  expert  testimony  in  criminal  cases  may,  of 
course,  under  present  conditions,  be  held  unconstitu- 
tional, as  evidenced  by  the  recent  attempts  of  the  leg- 
islature of  Michigan  in  that  direction.  (See  State  v. 
Dickerson,  164  Mich.  150.)  Constitutions  may  be 
amended,  however,  if  necessary,  and  the  recent  con- 
stitutional convention  in  Ohio  recommended  that  the 
new  constitution  for  that  state  should  empower  the 
legislature  to  enact  such  laws.  In  Wisconsin,  sev- 
eral attempts  to  pass  similar  legislation  have  been 
made,  the  latest  being,  I  understand,  in  the  1913  ses- 
sion. This  measure  provided,  in  brief,  that  the  gov- 
ernor should  appoint  from  twenty-five  to  fifty  state- 
accredited  alienists  from  whom,  when  the  defense  of 
insanity  is  made  in  criminal  cases,  tlie  trial  judge 


26  MODERN  AMERICAN  LAW  LECTURE 

should  choose  three  to  examine  the  accused  and  to 
testify  as  to  their  opinions,  and  giving  further  au- 
thority to  each  side,  in  the  discretion  of  the  court,  to 
call  three  other  expert  witnesses,  and  fixing  the  com- 
pensation at  not  more  than  twenty-five  dollars  per 
day  and  expenses.  The  bill  passed  the  senate  by  a 
large  majority,  but  was  defeated  in  the  assembly. 

Summing  Up  hy  Counsel.  In  some  jurisdictions, 
the  time  allowed  counsel  to  sum  up  the  case,  the  lati- 
tude given  for  irrelevant  outbursts  of  eloquence  and 
fantastic  flights  of  oratory,  are  further  causes  of  de- 
moralization in  our  courts.  In  a  recent  sensational 
case  in  Memphis,  one  attorney  spoke  for  six  hours, 
an  admiring  newspaper  saying  of  his  address :  ''His 
audience  at  one  time  wept  without  restraint  under  the 
spell  of  his  pathos,  and,  again,  flamed  with  red-hot 

wrath "     In  a  notorious  case  in  New  York,  a 

whole  day  was  not  sufficient  for  the  closing  address 
of  counsel  for  the  defense,  the  burden  of  his  appeal 
being,  in  effect,  an  entreaty  to  the  jury  to  disregard 
the  law  applicable  to  the  case,  and  to  show,  by  their 
acquittal  of  the  prisoner,  that  they  believed  with  the 
speaker  in  the  existence  of  an  American  code  that 
was  higher  than  the  law  of  the  land.  It  is  indefensi- 
ble by  any  correct  principles  of  law  to  permit  counsel 
to  depart  in  their  arguments  from  the  law  and  the 
evidence  of  the  case,  and  a  lawyer  who  seeks  by 
impassioned  appeal  to  persuade  a  jury  to  disregard 
the  law  of  his  country,  urging  its  members,  in  sub- 
stance, to  violate  their  oaths  which  were  solemnly 
given  to  decide  the  case  ''according  to  the  law  and 
evidence,"  should  be  publicly  censured  by  the  court. 


EEFORMS  IN  CRIMINAL  PROCEDURE  27 

The  Charge  of  the  Court.  As  to  the  charge  by  the 
court,  into  what  a  maze  and  tangle  our  modern  pro- 
cedure has  led  us !  No  longer,  in  most  jurisdictions, 
is  the  judge  permitted  to  sum  up  the  evidence  and  to 
enlighten  the  jury  thereon,  which  was  formerly  the 
chief  duty  of  the  court,  and  which  process  lies  at  the 
very  foundation  of  the  theory  of  trial  by  jury.  The 
judge  is  now  compelled  to  decide  hastily  as  to  the  law 
upon  a  voluminous  mass  of  requests  to  charge,  involv- 
ing many  intricate  questions  cunningly  devised  by 
keen  and  adroit  advocates,  in  connection  with  any  one 
of  which,  either  by  refusing  to  charge  or  charging, 
as  requested,  he  may  fall  into  reversible  error.  He 
must,  thus,  decide  offhand  complicated  questions  of 
law,  which  a  reviewing  court  has  the  opportunity  to 
consider  at  leisure,  with  the  help  of  briefs,  arguments 
of  counsel,  and  consulting  associates.  The  system  is 
wrong,  injurious,  unscientific. 

There  would  seem  to  be  no  valid  objection  to  a  re- 
form that  has  been  suggested  in  this  matter,  namely, 
that  the  instructions  should  be  prepared  by  the  court 
with  the  assistance  of  counsel  representing  both  sides, 
and  that  objections  to  such  charge  should  be  made  at 
that  time  and  not  be  permitted  to  be  raided  subse- 
quently. Moreover,  as  now  provided  by  statute  in 
some  jurisdictions,  no  judgment  should  be  reversed 
or  new  trial  granted  for  any  error  in  the  admission 
or  exclusion  of  testimony,  or  in  the  instructions  to 
the  jury,  unless  it  appears  to  the  reviewing  court  that 
the  rights  of  the  accused  were  thereby  substantially 
affected,  or  that  if  such  error  had  not  been  committed 
a  diff'erent  verdict  might  have  been  rendered. 


28  MODERN  AMERICAN  LAW  LECTURE 

Compared  With  the  Length  of  Trials  in  This  Coun- 
try, How  Different  It  Is  in  England,  the  Home  of  Our 
Common  Law!  I  am  not  one  who  is  fond  of  extolling 
English  institutions  as  superior  to  our  own,  yet,  hav- 
ing observed  the  procedure  in  the  Central  Criminal 
Court  at  the  Old  Bailey,  in  London,  candor  compels 
me  to  say  that  in  the  prompt  dispatch  of  business  the 
English  courts  are  able  to  teach  us  much.  Recently 
in  London,  to  cite  one  illustrative  instance,  the  trial 
of  Lai  Dhingra,  the  young  East  India  student  who 
murdered  Sir  Curzon  Wyllie,  lasted  less  than  two 
hours.  It  is  true  he  had  no  counsel,  no  provision  ex- 
isting in  the  English  law  requiring  the  appointment 
of  counsel  by  the  trial  court  (which,  of  course,  is  un- 
just), but  that  fact  probably  did  not,  in  itself,  hasten 
matters.  The  witnesses  were  called  in  rapid  succes- 
sion ;  the  questions  were  brief  and  leading  (permis- 
sible in  the  English  direct  examination)  ;  the  presid- 
ing judge  (none  other  than  the  Lord  Chief  Justice 
himself)  permitted  nothing  to  be  said  or  done  that 
did  not  bear  directly  upon  the  issue. 

All  was  over,  the  prisoner  convicted  and  sentenced 
to  death,  in  less  than  a  hundred  minutes,  and  no  rea- 
sonable man  could  say  that  the  accused  did  not  have 
a  fair  trial  in  accordance  with  English  law.  Of 
course,  this  was  a  clear  case,  but  is  it  exaggeration  to 
say  that,  in  this  country,  a  similar  case  might  have 
been  prolonged  for  days,  if  not  for  weeks?  Mr. 
Justice  Riddell,  of  Ontario,  says  he  never  tried  a 
murder  case  that  took  over  a  day  and  a  quarter, 
and  never  heard  of  one  in  Canada  that  took  over 
four  days. 


REFORMS  IN  CRIMINAL  PROCEDURE  29 

Appeals. 

The  greatest  source  of  delay  in  our  criminal  pro- 
cedure, and  a  fruitful  cause  of  great  abuses,  is  our 
system  of  appeals.  If  the  possible  delays  before  the 
trial  are  a  source  of  grave  injustice  to  society,  what 
is  to  be  said  of  this  greater  evil,  the  comparative  ease 
with  which  a  convicted  criminal,  providing  he  is  well 
supplied  with  money,  may,  for  even  two  or  three 
years,  postpone  the  end  ?  In  the  case  of  a  poor  man, 
however,  the  result  may  be  different. 

The  Expense  of  Appeals,  One  illustration  must 
suffice.  A  few  years  ago,  in  the  city  of  Chicago,  a 
murder  trial  resulted  in  conviction,  and  the  defendant 
was  sentenced  to  death.  He  naturally  desired  to  ap- 
peal, but  he  was  destitute  of  funds.  The  cost  of  pre- 
paring a  transcript  of  the  record  was  estimated  at 
$700,  but  this  he  could  not  raise.  The  final  day  for 
the  filing  of  the  transcript  in  order  to  perfect  his  ap- 
peal and  thus  to  obtain  a  stay,  was  almost  at  hand, 
and  had  not  some  sympathetic  person,  a  stranger  to 
the  accused,  it  is  said,  contributed  the  necessary  costs 
as  a  gift,  the  year  or  more  of  life  which  was  thus 
secured  to  the  prisoner  by  the  stay  would  not  have 
been  possible.  Granting  that  the  conviction  was  just, 
that  the  prisoner  was  a  notorious  criminal,  neverthe- 
less it  is  a  shame  to  American  jurisprudence  that, 
under  the  administration  of  its  cruninal  law,  the  lack 
of  a  f  CAV  hundred  dollars  may  send,  today,  one  convict 
to  the  gallows,  while  the  possession  of  it  may,  to- 
morrow, stay  the  execution  of  the  sentence  of  another 
criminal  for  a  year  or  more,  with  the  possibility  of  a 
final  reversal  for  error  in  the  voluminous  record. 


30  MODERN  AMERICAN  LAW  LECTURE 

Tlie  English  System  of  Appeals.  The  right  of  ap- 
peal in  criminal  cases  is  either  constitutional  or 
statutory.  There  is  no  appeal  in  such  cases  at  the 
common  law.  In  fact,  there  were  no  appeals  in 
criminal  cases  in  England  prior  to  the  year  1908 
(7  Edw.  VII  c.  23).  In  that  country,  at  the  pres- 
ent time,  one  who  has  been  convicted  on  an  indictment 
may  appeal  to  the  Court  of  Criminal  Appeal  as  a 
matter  of  right  on  any  ground  that  involves  only  a 
question  of  law,  and  by  leave  of  the  trial  judge  or  of 
the  Court  of  Criminal  Appeal  on  any  ground  involv- 
ing a  question  of  fact  alone,  or  a  mixed  question  of 
both  law  and  fact,  if  such  judge  or  court  certifies 
that  the  case  is  a  fit  one  for  appeal.  The  appeal  must, 
however,  be  taken,  if  taken  at  all,  by  notice  given 
within  ten  days  from  the  date  of  conviction.  The 
registrar  of  the  Court  of  Criminal  Appeal  must  ob- 
tain and  lay  before  the  court  all  documents,  exhibits, 
and  other  things  relating  to  the  proceedings  in  the 
trial  court.  The  trial  judge  may  also  be  required  to 
furnish  the  registrar  with  his  notes  of  the  trial  and  a 
report  of  his  opinion  concerning  the  case.  The  appel- 
late court  may  also  examine  any  witness  who  could 
have  been  required  to  testify  at  the  trial,  or  any  other 
competent  witness,  and  may  allow  the  reading  of  dep- 
ositions. 

In  this  way  an  appeal  is  quickly  taken,  speedily 
disposed  of,  and  with  practically  no  expense  to  the 
appellant.  Counsel  may  be  assigned  to  an  appellant 
if  he  is  unable  to  procure  such  for  himself.  Short- 
hand notes  taken  at  the  trial  are  not  essential,  and  in 
a  recent  case  (R.  v.  Bennett,  1909),  the  statement  of 


REFORMS  IN  CRIMINAL  PROCEDURE  31 

counsel  for  the  appellant  who  was  present  at  the  trial 
(where  there  were  no  such  notes)  was  accepted. 
Even  where  there  are  shorthand  notes,  the  appellate 
court  will  be  guided  by  the  judge's  notes  in  case  of 
discrepancy  between  them. 

From  this  brief  outline  of  the  present  English  pro- 
cedure the  great  difference  in  the  time  required  for 
the  disposal  of  appeals  in  cruninal  cases  in  the  two 
great  English-speaking  countries  can  be  readily  seen. 
It  is  also  evident  that  the  poorest  man  stands  on  an 
equal  plane  of  justice  with  the  richest. 

Practical  Reforms  in  Appeals.  There  is  no  reason 
why  in  this  country  appeals  cannot  be  limited  to  a 
brief  time,  and  such  parts  of  the  record  as  are  neces- 
sary to  the  case  be  transmitted  to  the  appellate  court 
without  expense  to  the  defendant.  Criminal  appeals 
should  be  docketed  as  prior  to  all  other  appeals,  and 
should  promptly  be  decided.  The  administration  of 
the  criminal  law  should  not  be  delayed  by  the  pres- 
sure of  court  business.  If  the  courts  are  crowded 
with  work,  separate  courts  of  criminal  appeals  could 
easily  be  created. 

III. 

THE   INDIFFERENCE   TO   REFORM. 

The  greatest  stumblingblock  in  the  pathway  of 
legal  reforms  in  this  country  has  been  indifference. 
Able  and  conscientious  members  of  our  profession 
admit  that  abuses  are  deeply  seated,  that  they  have 
long  existed,  yet  they  tell  us  that  in  one  form  or 
another  they  have  been  the  targets  for  criticism  for 


32  MODEEN  AMERICAN  LAW  LECTURE 

many  generations,  and  that  there  is  no  panacea  for 
the  law's  delay,  that  much  of  it  is  inevitable,  that 
the  real  explanation  of  it  all  is  to  be  found  in  the  peo- 
ple themselves,  in  litigants,  and  that  there  will  have 
to  be  a  general  reformation  of  selfish  human  nature 
before  ''the  impractical  dreams  of  theorists"  can  be 
realized. 

The  Duty  of  Lawyers. 

Such  statements  contain  something  of  truth,  but, 
nevertheless,  much  of  error.  If  the  present  evils  in 
our  legal  system  are  to  be  remedied,  the  work  must 
be  done  by  the  lawyers,  because  no  other  class  of  men 
can  do  it.  Only  men  thoroughly  trained  in  the  law, 
its  history,  its  practice,  its  needs,  are  able  intelli- 
gently to  improve  conditions.  In  all  ages  the  ablest 
of  men  have  been  enrolled  in  the  ranks  of  the  legal 
profession.  From  the  days  of  the  Roman  prsetor  to 
the  present  it  has  been  the  jurist,  the  philosopher  in 
governmental  and  legal  science,  that  has  done  most 
for  the  state,  and  it  must  always  be  so. 

The  great  cause  for  regret,  however,  is  that  so  few 
lawj^ers  seem  to  realize  the  debt  they  owe  to  their 
profession.  Are  not  the  remarks  of  the  distinguished 
Lord  Bryce,  the  recent  Ambassador  from  England, 
equally  applicable  to  our  own  country?  In  his  vale- 
dictory lecture  at  Oxford,  where  he  had  been  a  law 
professor  for  many  years,  he  said,  with  deep  regret : 
"There  are  few  countries  in  which  so  small  a  propor- 
tion of  the  men  engaged  in  professional  work  show 
an  active  interest  in  legal  reforms."  Nevertheless, 
that  same  country,  whose  obsolete  legal  principles 


EEFORMS  IN  CRIMINAL  PROCEDURE  33 

we  still  SO  largely  and  so  ])liiidly  follow,  lias  far 
outstripped  our  own  in  very  many  phases  of  legal 
advancement. 

TJte  Laivyer  Should  Determine  Whetlier  the  Lata 
Is  Fulfilling  Its  Mission.  The  lawyer  should  be  a 
social  philosopher,  a  real  student  and  advocate  of 
social  betterment,  not  leaving  these  great  problems 
to  others  who  often,  in  their  lack  of  training  in  the 
law  and  in  the  history  of  legal  institutions,  harm- 
fully meddle  with  so-called  legal  reforms.  The  ques- 
tion is  not  one  merely  of  business,  or  of  income,  but 
whether  the  law,  as  a  great  science  like  the  science 
of  medicine,  is  fulfilling  its  mission  in  meeting  the 
needs  of  society. 

Our  legal  machinery  must  necessarily  adapt  itself 
to  changing  needs  and  changing  conditions.  The 
only  correct  theory  of  remedial  justice  is  that  which 
best  promotes  the  peace,  the  prosperity,  the  welfare 
of  the  whole  people ;  that  which  equally  protects  the 
interests  and  liberties  of  the  individual  citizen  with- 
out, however,  doing  injustice  to  the  state;  and  that 
which  secures  to  even  the  humblest  his  just  rights 
without  unreasonable  cost  and  without  unreasonable 
delay. 


GAYLAMOUNT® 
PAMPHIET  BINDER 

..^_       Syrocuse,  N.Y.  ' 
^^5        Stockton,  Colif. 


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